Two Federal Circuit judges called on the full court to reevaluate the law on willful infringement, which according to Eppenauer “is unwarranted, and not grounded on solid legal or policy underpinnings.”

Eppenauer, who formerly served as Microsoft’s Chief Patent Counsel for more than a decade, thinks this move could undo the progress of the In re Seagate Technology decision of 2007, which many viewed as a step forward in willful infringement law.

Prior to the Seagate decision, large amounts of false willful infringement assertions negatively affected patent litigation and often “provided plaintiffs unfair leverage with a threat of triple damages, and caused massive problems with attorney-client privilege issues, not to mention wasteful and unnecessary discovery expense.”

He argues that in 2007 the Federal Circuit already “looked to the well-established meaning of the term ‘willful’ in other civil contexts in defining the standard for ‘willfulness’ as requiring ‘objective recklessness’”, making it unnecessary for the judges to reassess.